Has A New Court Decision Changed The Rules For Design Marks In Canada?

A recent Federal Court of Appeal decision, Therme Development v. Nordik Spa Village (2026 FCA 85), may make it harder to register trademarks that contain descriptive wording – even where the mark also includes significant graphic or logo elements.

For many years, trademark owners have relied on the 2004 Best Canadian decision, which suggested that a trademark containing descriptive wording could still be registrable where the design features created a sufficiently distinctive overall impression. In that case, however, the Court ultimately found that the wording remained the dominant feature of the mark shown below, and that the trademark was therefore clearly descriptive when sounded:

In Therme, the Federal Court of Appeal clarified that the lower court should not have treated the word portion as dominant simply because the design elements could not be sounded. Instead, the Court confirmed that the proper analysis is to compare the overall visual impression created by the